Parks v. Steinbrenner

• Decision Date: 23 July 1987
• Citation: 131 A.D.2d 60,520 N.Y.S.2d 374
• Parties: , 14 Media L. Rep. 1375 Dallas PARKS, Plaintiff-Respondent, v. George STEINBRENNER and New York Yankees, Inc., and New York Yankees Partnership, Defendants-Appellants.
• Court: New York Supreme Court — Appellate Division

Page 374

520 N.Y.S.2d 374

131 A.D.2d 60, 14 Media L. Rep. 1375

Dallas PARKS, Plaintiff-Respondent, v. George STEINBRENNER and New York Yankees, Inc., and New York

Yankees Partnership, Defendants-Appellants.

Supreme Court, Appellate Division,

First Department.

July 23, 1987.

Barry G. Saretsky, of counsel (Bower & Gardner, New York City, attorneys), for defendants-appellants.

Sheldon Bunin, of counsel (Alexander, Ash, Schwartz & Cohen, P.C., New York City, attorneys), for plaintiff-respondent.

Before KUPFERMAN, J.P., and CARRO, KASSAL, ELLERIN and WALLACH, JJ.

ELLERIN, Justice.

This action for defamation brings into play one of the most colorful of American traditions--the razzing of the umpire.

The plaintiff, Dallas Parks, served as an American League baseball umpire from 1979 through 1982. He alleges that he was defamed by George Steinbrenner, principal owner of the New York Yankees, when Steinbrenner on August 29, 1982, issued a press release, excerpts of which were published in newspapers throughout the United States, criticizing Parks' abilities as an umpire. The press release, which was issued after the Yankees had played a two-game series with the Toronto Blue Jays in Toronto, Canada, on August 27th and 28th, at which Parks officiated, reads as follows:

Judging off his last two days' performance, my people tell me that he is not a capable umpire. He is a member of one of the finest crews umpiring in the American League today, but obviously he doesn't measure up.

We are making no excuse for the team's play this season, but this weekend our team has had several key injuries and for umpire Dallas Parks to throw two of our players out of ballgames in two days on plays he misjudges is ludicrous.

This man, in my opinion, has had it in for the Yankees ever since I labeled him and several of the umpires as 'scabs' because they worked the American Leagues games in 1979 during the umpires' strike.

Parks must learn that the word scab is a commonly used phrase. It is in no way meant as a personal insult. However, because he worked during the strike for baseball management does not mean he should be protected by them and annually given a job he is not capable of handling.

This less than complimentary critical assessment appears to have been the "final straw" in the rhubarb that had long simmered between the umpire and the owner and resulted in commencement of the instant action, against Steinbrenner and the Yankees, wherein plaintiff seeks damages for defamation on the ground that the press release falsely impugned his ability, competence, conduct and fairness as a baseball umpire.

In subsequently moving, pursuant to CPLR 3211(a)(7), to dismiss the complaint for failure to state a cause of action, defendants argued that the press release represented a nonactionable constitutionally protected expression of opinion. While Special Term found that the statement was "clearly expressed as an opinion", it nevertheless held that the complaint sufficiently pleaded a cause of action in defamation because the press release did not "set forth an adequate statement of facts which would support that opinion". The Court concluded that the only fact contained in the statement--i.e., that Parks expelled two Yankee players from the game--did "not in anyway support the opinions proffered" that plaintiff was incompetent and biased and, further, that no factual basis was set forth for the conclusory assertion that plaintiff misjudged plays.

We disagree with Special Term's assessment of the press release in question and find that it constituted a constitutionally protected expression of pure opinion.

In all defamation cases, the threshold issue which must be determined, as a matter of law, is whether the complained of statements constitute fact or opinion. If they fall within the ambit of "pure opinion", then even if false and libelous, and no matter how pejorative or pernicious they may be, such statements are safeguarded and may not serve as the basis for an action in defamation. (Steinhilber v. Alphonse, 68 N.Y.2d 283, 289, 508 N.Y.S.2d 901, 501 N.E.2d 550; Rinaldi v. Holt, Rinehart & Winston, Inc., 42 N.Y.2d 369, 380-381, 397 N.Y.S.2d 943, 366 N.E.2d 1299, cert. denied, 434 U.S. 969, 98 S.Ct. 514, 54 L.Ed.2d 456.) A non-actionable "pure opinion" is defined as a statement of opinion which either is accompanied by a recitation of the facts upon which it is based, or, if not so accompanied, does not imply that it is based upon undisclosed facts. Alternatively, when a defamatory statement of opinion implies that it is based upon undisclosed detrimental facts which justify the opinion but are unknown to those reading or hearing it, it is a "mixed opinion" and actionable. (Steinhilber v. Alphonse, supra, 68 N.Y.2d at 289-90, 508 N.Y.S.2d 901, 501 N.E.2d 550.) Similarly actionable as a "mixed opinion" is a defamato opinion which is ostensibly accompanied by a recitation of the underlying facts upon which the opinion is based, but those underlying facts are either falsely misrepresented or grossly distorted. (Silsdorf v. Levine, 59 N.Y.2d 8, 462 N.Y.S.2d 822, 449 N.E.2d 716, cert. denied, 464 U.S. 831, 104 S.Ct. 109, 78 L.Ed.2d 111; Chalpin v. Amordian Press, 128 A.D.2d 81, 515 N.Y.S.2d 434.)

Determining whether particular statements, or particular words, express fact or opinion is ofttimes an exercise beset by the uncertainties engendered by the imprecision and varying nuances inherent in language. While mechanistic rules and rigid sets of criteria have been eschewed as inappropriate vehicles for the sensitive process of separating fact from opinion, reference to various general criteria has been found helpful in resolving the issue. Predominant among these is that the determination is to be made on the basis of what the average person hearing or reading the communication would take it to mean, and that significance is to be accorded the purpose of the words, the circumstances surrounding their use and the manner, tone and style with which they are used. (Steinhilber v. Alphonse, supra, 68 N.Y.2d at 290-291, 508 N.Y.S.2d 901, 501 N.E.2d 550.) An approach which was favorably commented upon in the Steinhilber case is that set forth by Judge Starr in his plurality opinion in (Ollman v. Evans, 750 F.2d 970 [D.C.Cir.] cert. denied, 471 U.S. 1127, 105 S.Ct. 2662, 86 L.Ed.2d 278) which enunciates four factors which should generally be considered in differentiating between fact and opinion. They are as summarized in Steinhilber, 68 N.Y.2d at 292, 508 N.Y.S.2d 901, 501 N.E.2d 550, as follows:

(1) an assessment of whether the specific language in issue has a precise meaning which is readily understood or whether it is indefinite and ambiguous; (2) a determination of whether the statement is capable of being objectively characterized as true or false; (3) an examination of the full context of the communication in which the statement appears; and (4) a consideration of the broader social context or setting surrounding the communication including the existence of any applicable customs or conventions which might 'signal to readers or listeners that what is being read or heard is likely to be opinion, not fact' (Ollman v. Evans, supra, at p. 983).

These factors have particular relevance to the statement here in issue which must be evaluated within the broader social context of a baseball club owner versus an umpire, and especial attention should be accorded to whether there exist any customs and conventions regarding the status of an umpire in the great American pastime which would signal to readers that what is being read is likely to be opinion not fact.

A brief historical perspective ¹ indicates that there are indeed such relevant customs and conventions. While it was an honor to be selected as the esteemed umpire in the early days of baseball, when it was known as a "gentleman's sport", that position changed markedly with the growth of professionalism in the 1870's, when the position of...